GKV18 v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 118

Federal Circuit and Family Court of Australia

(DIVISION 2)

GKV18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 118   

File number(s):

SYG 3459 of 2018

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

24 February 2023

Catchwords:

MIGRATION ACT – Administrative Appeals Tribunal – Protection Visa – whether the second respondent failed to exercise a reasonable apprehension or actual bias – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth) ss 424, 425

Cases cited:

Christeas v Christeas [2021] HCA 29

Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

WZAVW v Minister for Immigration and Border Protection [2016] FCA 760

Division:

Division 2 General Federal Law

Number of paragraphs:

43

Date of last submission/s:

14 February 2023

Date of hearing:

14 February 2023

Place:

Sydney

Counsel for the Applicant:

The Applicant appeared in person.

Counsel for the Respondents:

Mr Reilly briefed by HWL Ebsworth.

ORDERS

SYG 3459 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

GKV18

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:	JUDGE HUMPHREYS
DATE OF ORDER:	24 FEBRUARY 2023

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The Applicant to pay the First Respondents costs, fixed in the sum of $6000.00.

THE COURT NOTES THAT:

3.The cost order was made in the absence of the Applicant.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

Introduction

1. The applicant, and his wife, Ms S, are citizens of Malaysia.  They arrived in Australia as the holders of Electronic Travel Authority (Subclass 601) Visitor’s visas on 8 July 2016. Ms S applied for a Protection visa on 16 September 2016.  The applicant applied for a Protection visa on 4 October 2016.

2. On 21 March 2017, a delegate of the Minister for Immigration refused to grant the applicant a Protection visa.  The applicant sought merits review at the Administrative Appeals Tribunal (“the Tribunal”).

3. On 14 November 2018, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa.  The applicant now seeks judicial review of the Tribunal’s decision.

   The ADMINISTRATIVE APPEALS Tribunal Decision

4. The Tribunal decision comprises 16 pages and 74 paragraphs. It is a compressive record of the applicant’s claims and the evidence he relied upon.

5. After setting out the relevant procedural background, at paragraph 5 of its decision, the Tribunal notes that the applicant’s wife also applied for a Protection visa.  The applicant told the Tribunal that his claims were the same as his wife’s claims.  The Tribunal noted that the applicant’s wife was also refused a Protection visa by differently constituted Tribunal.  The Tribunal in the applicant’s case had regard to the evidence which was set out in the decision record in relation to her claim for a Protection visa.

6. At paragraph 9 of its decision, the Tribunal noted that it invited the applicant to comment on or respond to information that if acceptable be part of the reason for affirming the decision under review.  As at the date of decision, the Tribunal noted that it had not received any response to that invitation.

7. At paragraph 10 of its decision, the Tribunal accepted that the applicant was a Malaysian National.  At paragraph 13, the Tribunal set out the claims made by the applicant in support of his Protection visa.  They are as follows:

   •The applicant ran a seafood restaurant in Kuala Lumpur.  In order to renew his business license, he joined the Malaysia Chinese Association.  This brought trouble to his business.

   •The applicant said he was threatened, disturbed and the business was getting “affected by opposition party” with a “few tricks”.  He faced numerous unreasonable complaints from an “other side” City Council Officer that there were frequent health bureau inspections which caused the business to face difficulties.

   •At the same time, he claimed that he was getting threatened by thugs nearby who came and asked for protection fees.

   •This business got worse with huge financial problems.  He decided the borrowed money from an illegal financial company which charges a high rate of interest.  He could not pay the loan and was forced to close his business.

   •He moved his family from Kuala Lumpur to Johor Bahru and sought help from his sister and her family to take care of his mother and children.  The illegal financial company easily found him and threatened his family.

   •He could not pay the loan back so after family discussion he and his wife chose to leave Malaysia and come to Australia to seek protection

8. The applicant claimed that if he returns to Malaysia he will face threats coming from the illegal financial company. He does not think that he will get Police protection if he returns to Malaysia.  Police corruption is a very serious and the Police cannot protect him and his family from the illegal financial company.  The applicant claims that the illegal financial company can easily find him if he relocated elsewhere in Malaysia.  The applicant has no place to hide and run. It is not safe at all to stay Malaysia.

9. At the hearing, the applicant claimed he was beaten by the illegal financial company and had not fully recovered.  The applicant went to the Police but they did not help. If the applicant can stay in Australia for a few years, he can then see the loan covered, and all will be okay.

10. At paragraph 16 of its decision, the Tribunal noted that the applicant and his wife did not come to Australia thinking that they could get help, only that he could find a job and his wife could study.  When the applicant was asked why both he and his wife submitted Protection visa applications, he stated “it is like two boats, if one sinks one-stop floats”.

11. At paragraph 17 and onwards of the Tribunal decision, the applicant claimed to be a permanent member of the Chinese Trade Union for business.  At paragraph 18, the applicant stated that after a change in government 2008/ 2009, a Council Officer wanted bribes that he could not pay, and this is when trouble started. The Malaysian economy started to recede, rent and electricity went up.  Under this pressure the applicant was tricked into taking out an illegal loan. By mid-2015 the applicant was unable to make payments to the illegal financial company.  This business became insolvent. The applicant sold all the furniture and fittings like the stove, to pay back the loan but was unable to do so.  At the end of 2015, the illegal financial company took the applicant’s oldest son and threatened him.  In around February 2016, the applicant claims to have been beaten.  A few months after he was beaten, he moved from Kuala Lumpur to Johor Bahru with his wife, mother and younger son.  The applicant’s other sons remained in Kuala Lumpur.

12. At paragraph 23 of its decision, the Tribunal records that the applicant was asked why, if his sons remained in Kuala Lumpur, they had not suffered any further harm from the illegal financial company.  The applicant claimed that no one knows where his sons live or work, not even his cousin.  The applicant stated that if he is alive in Malaysia, then the problem will come to his family.

13. At paragraph 25 of its decision, the Tribunal noted that had serious concerns about whether or not the applicant was a truthful witness.  The Tribunal found his evidence was inconsistent and did not point to someone that had a genuine fear of harm.  The Tribunal noted at paragraph 28, that the applicant relied on the claims made by his wife.  The Tribunal noted that her claims and evidence were not consistent with the applicant’s. At paragraph 29, the Tribunal noted that it raised certain discrepancies between the applicant and his wife’s evidence of the things that he recounted happened to him and not his wife, who he wanted to protect.  The applicant also said that what his wife said was a bit imaginative and even now, he has not told her everything.

14. At paragraph 33 and onwards of its decision, the Tribunal details the applicant’s wife’s claims.  The applicant’s wife claimed that their business was affected by the tricks of opposition party.  The applicant’s wife claimed that there were numerous unreasonable complaints from City Council Officers and Health Bureau Officials who inspected the restaurant and made it difficult for the restaurant to survive.  The applicant’s wife’s application states that because of financial problems she decided to borrow money from an illegal financial company that charged high interest.  The applicant’s wife could not afford to pay the interest and was forced to sell the restaurant.

15. At paragraph 35 of its decision, the Tribunal noted that the applicant’s wife made no mention in her application of a bank loan to buy property or difficulty paying the bank loan which she claimed at the hearing, led to the illegal loan.  At a hearing the applicant’s wife made no reference to opposition party members in the City Council that she claimed in her application had caused problems for the business or thugs referred to as the reasons for the illegal loan.  The Tribunal noted that the inconsistencies indicated the applicant’s wife was not a truthful witness and that her evidence supporting the applicant’s claims was not reliable.

16. At paragraph 36 through to 40 of its decision, the Tribunal noted numerous inconsistencies between the applicant’s evidence and that of his wife.  This included claims by the applicant’s wife that the business closed in 2014, and according to her, two years without any harm would have passed before they moved away from Kuala Lumpur.  The applicant said that his wife was a nobody and has “no brain”, she was before the Tribunal for less than two hours, and, he asked why she would not just get this story straight.  The Tribunal concluded that the discrepancy in the date was not something that could be explained by the applicant not telling his wife things about the business to avoid worrying her, as he claimed.

17. At paragraphs 41 through to 43 of its decision, the Tribunal records inconsistencies between the applicant’s wife’s evidence and that of the applicant as to whether or not the applicant’s wife owned another restaurant whereas, the applicant indicated there was only one restaurant which was closed, but not deregistered sometime between 2015 and 2016.  The Tribunal found that it was not satisfied that the explanation given by the applicant and addressed the various inconsistencies with respect to the wife’s evidence.  At paragraphs 44 through to 46, the Tribunal considers inconsistencies between the applicant wife’s evidence and that of the applicant regarding membership of the Malay Chinese Association.  These inconsistencies undermined the applicant’s credibility.

18. The balance of the decision deals with inconsistencies between the applicant’s evidence, and that of his wife in relation to claims in relation to the illegal finance companies, Police, residents and family and the basis and reasons why they came to Australia.

19. At paragraph 63 of its decision, the Tribunal found that neither the applicant, nor his wife were truthful witnesses.  The Tribunal noted that it sent him a detailed letter giving him an opportunity to address the Tribunal’s concerns however he was unable to persuasively explain any of the inconsistencies.  The Tribunal concluded that it was clear that the applicant had tried to mislead the Tribunal.  The Tribunal concluded that it was unable to believe any of the material provided by the applicant.  As such, the Tribunal concluded that both the applicant and his wife fabricated the story and rejected the applicant’s claims in relation to future harm were he to return to Malaysia.

20. Accordingly, the Tribunal concluded that the applicant did not have a well-founded fear of persecution as required under the Act and did not also meet the complimentary protection criteria.  The Tribunal therefore affirmed the delegate’s decision not to grant the applicant a Protection visa.

    Grounds of Judicial Review

21. The grounds of judicial review relied upon by the applicant are contained in an Initiating Application lodged with the Court on 11 December 2018.  They are as follows (verbatim);

    Ground One

    AAT failed to consider my fear and risk of harm upon return to Malaysia AAT failed to consider the evidence before them.

    Ground Two

    AAT failed to exercise a reasonable apprehension or actual bias.

    Ground Three

    AAT failed to consider my situation separately.

22. The Court notes that no particulars or other information has been supplied to the Court in support of the above grounds of judicial review.

    THE Applicant’s Submissions

23. The applicant appeared before the Court unrepresented.  The applicant was assisted by an Interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court books and that the first respondent’s written submissions had been translated to him.  The Court also ensured that the applicant had access to a pen and paper so he could take notes during the course of the hearing should he so wished to.

24. At the commencement of the hearing, the Court explained was undertaking judicial review, not merits review and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be undertaken.

25. Despite Court orders, no written submissions or other material was provided to the Court by the applicant in support of his case.  The applicant told the Court that he had left his own country and tried to face up to the problems he had in his country.  In so doing the applicant left his children and has been away for seven years.  The applicant stated that he believed in Australian law and it would give him a fair decision.  The applicant did not want to talk too much however emphasised that he wished to stay in Australia for some more time and that after an extended time he would go home.

26. The applicant was reminded that the matters he had raised only went to the merits of the decision, not to any legal error in the decision of the Tribunal.  In response, the applicant again stated that he just wants a more time to stay here but did not want to talk any more as he felt very tired.

27. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to state anything in reply.  The applicant answered that there was no evidence that he had not been telling the truth.  The Department did not understand the suffering he had endured.  The applicant did not want to say anything more and reiterated he needed more time to stay in Australia.

    THE FIRST Respondent’s Submissions

28. On behalf of the first respondent, it was submitted that grounds one and two fail as the Tribunal’s reasons indicate that it did consider the applicants “fear and risk of harm upon return to Malaysia” on the evidence before it.  The Tribunal recounted the claims made by the applicant in his application at paragraph 12 to 14 of the decision record.  Further, the Tribunal summarised the applicant’s evidence at the Tribunal hearing in support of his claims at paragraphs 15 to 24.

29. The Tribunal set out its credibility concerns regarding the applicant’s claims at paragraphs 26 to 62 of the decision record.  The Tribunal noted that the applicant was unable to persuasively explain the reason for a number of inconsistencies in evidence given to the Tribunal.  The Tribunal found that the applicant and his wife had fabricated their story and rejected the entirety of the applicant’s claims.  These findings were open to it for the reasons it gave.

30. Ground three is an un-particularised allegation of actual of apprehended bias on the part of the Tribunal.  The claim of actual bias must be “clearly alleged and proved”.  Only in “rare and extreme’ cases will actual bias be disclosed by written reasons alone: (see; SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749 at [43] – [44]). The mere fact the Tribunal made findings which are adverse to the applicant cannot amount to bias.

31. Ground four appears to contend that the Tribunal erred in considering the claims and evidence the applicant’s wife provided to the Tribunal in its assessment of the credibility of the applicant’s claims.  It was submitted this ground rises no higher than of attempt to engage in impermissible merits review of the Tribunal’s credibility findings.

32. First, the applicant told the Tribunal at the hearing that his wife’s protection claims were the same as his: (see; decision record at [16], [28]).  As such, it was open to the Tribunal to consider the claims and evidence as set out in the decision record that relate to the applicant’s wife.

33. Secondly, the applicant was afforded the opportunity to give evidence and present arguments in relation to the issues arising in the decision under review pursuant to s 425 of the Migration Act 1958 Cth (“the Act”).  These issues included the Tribunal’s concerns with respect to discrepancies between the applicants and his wife’s evidence.  The Tribunal raised its concerns with respect to the applicant and his wife’s credibility at the hearing, particularly the inconsistencies between their evidence: (see; Decision Record at [63]).  The Tribunal noted that the applicant was unable to persuasively explain any of the inconsistencies.

34. Thirdly, following the hearing, the Tribunal wrote to the applicant pursuant to s 424A of the Act and invited him to comment on particulars of information in the wife’s decision.  This information was said to affect his credibility and subject to his comments or response, would be part of the reason for affirming the decision under review.  The applicant was given until 31 August 2018 to provide such a response, however at the date of its decision the Tribunal received no response from the applicant.

35. It was submitted that the Tribunal properly discharged its procedural fairness obligations under the Act.  Contrary to the applicant’s assertion under this ground, the Tribunal’s decision record reveals it did consider and make an assessment of the applicant’s claims. The assessment is sound and fails to disclose jurisdictional error.

    Consideration

36. Each of the four grounds of judicial review is a bland assertion of jurisdictional error, unsupported by particulars. On this basis alone, each of the grounds could be dismissed: (see; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).

37. Ground one is an assertion that the Tribunal failed to consider the applicants fear of risk of harm upon return to Malaysia.  This ground can be considered with ground two which alleges that the Tribunal failed to consider the evidence before it.  A fair reading of the Tribunal decision record reveals a comprehensive consideration of the evidence that was before the Tribunal together with the applicant’s claims.  The Tribunal made numerous adverse credibility findings.  The Court is of the view that these findings were open to the Tribunal based on the evidence that was before it and for the reasons it gave.  There is nothing legally unreasonable, irrational or illogical in the reasoning process adopted by the Tribunal and the findings it made based on the evidence that was before it.  Further, those findings in relation to credibility were not tainted by any failure to serve procedural fairness.  The Court notes that the applicant was specifically taken to the inconsistencies that concerned the Tribunal and invited to make a response.  The applicant’s response did not change the view of the Tribunal that his evidence was unreliable. Grounds one and two have no merit.

1. Ground three is an un-particularised allegation of actual or apprehended bias.  The claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing.  Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision.  Similarly, the mere fact that a Tribunal makes adverse findings in respect of the applicant, does not give rise to an inference of bias or, by itself, suggested a decision-maker approached its task other than the mind open to persuasion: (see; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; Christeas v Christeas [2021] HCA 29 at [11]).

2. A fair reading of the Tribunal’s decision does not disclose any prejudgement on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or being persuaded differently whatever the evidence or argument may be presented”: (see; Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71] – [72]).

3. The fact that the Tribunal made findings which are adverse to the applicant does not and cannot amount to bias.  Ground three has no merit

4. Ground four appears to be a claim that the Tribunal failed to consider the applicant’s situation separately, apparently from that of the applicant’s wife.  The Court agrees with the first respondent’s submission that this ground rises no higher than to attempt to engage in impermissible merits review in respect of the Tribunal’s adverse credit findings.  The Court accepts the decision record of the Tribunal where it states that the applicant stated his claims were the same as that of his wife.  The Tribunal fairly noted the discrepancies between the evidence contained within the decision record that related to the applicant’s wife and the evidence that he gave.  The applicant was given the opportunity to try and explain these inconsistencies but was unable to do so to the satisfaction of the Tribunal.

5. The Court is satisfied that the applicant’s claims were considered separately from those of his wife, and that it was the inconsistencies in the applicant’s evidence as compared to other evidence that was available which led the Tribunal to the conclusion that his claims were fabricated.  Again, the Court is of the view that this finding was open to the Tribunal on the basis of the evidence that was before it and for the reasons it gave.  Ground four has no merit.

   CONCLUSION

6. Accordingly, in these circumstances, having come to the conclusion that none of the grounds of jurisdictional error relied upon by the applicant have any merit, the application must be dismissed.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       24 February 2023